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Today is Wednesday, February 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-69803 October 8, 1985
CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners,
vs.
HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of Quezon City; HON. ANTONIO P.
SANTOS, Presiding Judge, Branch XLII, Metropolitan Trial Court of Quezon City: HON. SERGIO F.
APOSTOL, City Fiscal, Quezon City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL RAMOS and COL. JESUS
ALTUNA, respondents.
Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and Cesar Maravilla for petitioners.

MELENCIO-HERRERA, J.:
The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings will be briefly stated. The
three petitioners will be referred to through their surnames of NOLASCO, AGUILAR-ROQUE and TOLENTINO.
1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-ROQUE was one of the
accused of Rebellion in Criminal Case No.
MC-25-113 of Military Commission No. 25, both cases being entitled "People of the Philippines vs. Jose Ma. Sison,
et al." She was then still at large.
2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a Constabulary Security
Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The stated time is an
allegation of petitioners, not denied by respondents. The record does not disclose that a warrant of arrest had
previously beeen issued against NOLASCO.
3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon Street, Quezon City.
The stated time is an allegation of petitioners, not specifically denied by respondents. In their COMMENT,
however, respondents have alleged that the search was conducted "late on the same day"; that is late on august
6th.
4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search Warrant
from respondent Hon. Ernani Cruz Pao, Executive Judge of the Regional Trial Court in Quezon City, to be served
at No. 239-B Mayon Street, Quezon City, determined tyo be the leased residence of AGUILAR-ROQUE, after
almost a month of "round the clock surveillance" of the premises as a "suspected underground house of the
CPP/NPA." AGUILAR-ROQUE has been long wanted by the military for being a high ranking officer of the
Communist Party of the Philippines, particularly connected with the MV Karagatan/Doa Andrea cases.
In connection with the Search Warrant issued, the following may be stated:
(a) The Search Warrant was issued in proceedings entitled "People of the Philippines vs. Mila Aguilar-Roque,
Accused, Search Warrant No. 80- 84 for rebellion" (the SEARCH WARRANT CASE). Judge Panos Court was
Branch 88.
(b) It does not appear from the records before us that an application in writing was submitted by Lt. Col. Saldajeno
to Judge Pao.

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(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examined under oath
by Judge Pao but only the deposition of S/A Lapus has been submitted to us. The latter deposed that to his
personal knowledge, there were kept in the premises to be searched records, documents and other papers of the
CPP/NPA and the National Democratic Front, including support money from foreign and local sources intended to
used
for
rebellion. 1 | SVUMP| NVURK
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be used for rebellion. 1

5. In connection with the search made at 12:00 N. of August 6th the following may be stated:
(a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching party presumably
without a warrant of arrest.
(b) The searching party seized 428 documents and written materials, 2 and additionally a portable typewriter, and 2
wooden boxes, making 431 items in all. 3

(c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, 4 the search was made in
the presence of Dra. Marciana Galang, owner of the premises, and of two (2) Barangay Tanods. No mention was made that
TOLENTINO was present. The list of the 428 articles and documents attached to the Return was signed by the two Barangay
Tanods, but not by Dra. Galang.

6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO, were charged before
the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed by the CSG against petitioners
for "Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion."
(b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree No. 33 (Illegal
Possession of Subversive Documents) against petitioners before Branch 42 of the Metropolitan Trial Court of
Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge Antonio P. Santos, presiding.
(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying that AGUILAR-ROQUE
and NOLASCO be charged with Subversion. The Motion was denied on November 16th.
7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT CASE praying, inter
alia, that the CSG be allowed to retain the seized 431 documents and articles, in connection with cases that are
presently pending against Mila Aguilar Roque before the Quezon City Fiscal's Office and the court. 5
(b) On September 28th, petitioners were required by Judge Pano to comment on the Amended Return, which
AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of any evidence obtained pursuant
to the Search Warrant.
(c) On December 13, 1984, Judge Pao admitted the Amended Return and ruled that the seized documents "shall
be subject to disposition of the tribunal trying the case against respondent."
8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE DOCUMENTS CASE, praying
that such of the 431 items belonging to them be returned to them. It was claimed that the proceedings under the
Search Warrant were unlawful. Judge Santos denied the Motion on January 7, 1985 on the ground that the validity
of the Search Warrant has to be litigated in the SEARCH WARRANT CASE. He was apparently not aware of the
Order of Judge Pao of December 13th issued in the SEARCH WARRANT CASE.
Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set aside the (1) Search Warrant issued
by respondent RTC Judge Pao; (2) his Order admitting the Amended Return and granting the Motion to Retain
Seized Items; and (3) Order of respondent MTC Judge Santos denying petitioners' Motion to Suppress.
This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the respondents or their duly
authorized representatives from introducing evidence obtained under the Search Warrant.
The PETITIONERS principally assert that the Search Warrant is void because it is a general warrant since it does
not sufficiently describe with particularity the things subject of the search and seizure, and that probable cause
has not been properly established for lack of searching questions propounded to the applicant's witness. The
respondents, represented by the Solicitor General, contend otherwise, adding that the questions raised cannot be
entertained in this present petition without petitioners first moving for the quashal of the disputed Search Warrant
with the issuing Judge.
We find merit in the Petition.
Section 3, Article IV of the Constitution, guarantees the right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. It also
specifically provides that no Search Warrant shall issue except upon probable cause to be determined by the
Judge or such other responsible officer as may be authorized by law, after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the place to be searched and the
things to be seized.
The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows:

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The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows:
Documents, papers and other records of the Communist Party of the Phihppines/New Peoples Army
and/or the National Democratic Front, such as Minutes of the Party Meetings, Plans of these groups,
Programs, List of possible supporters, subversive books and instructions, manuals not otherwise
available to the public, and support money from foreign or local sources.
It is at once evident that the foregoing Search Warrant authorizes the seizure of personal properties vaguely
described and not particularized. It is an all- embracing description which includes everything conceivable
regarding the Communist Party of the Philippines and the National Democratic Front. It does not specify what the
subversive books and instructions are; what the manuals not otherwise available to the public contain to make
them subversive or to enable them to be used for the crime of rebellion. There is absent a definite guideline to the
searching team as to what items might be lawfully seized thus giving the officers of the law discretion regarding
what articles they should seize as, in fact, taken also were a portable typewriter and 2 wooden boxes. It is thus in
the nature of a general warrant and infringes on the constitutional mandate requiring particular description of the
things to be seized. In the recent rulings of this Court, search warrants of similar description were considered null
and void for being too general. Thus:
Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives
and purposes of the subversive organizations known as Movement for Free Philippines. Light-a-Fire
Movement and April 6 Movement. 6
The things to be seized under the warrant issued by respondent judge were described as 'subversive
documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials
Such description hardly provided a definite guideline to the search team as to what articles might be
lawfully seized thereunder. Said description is no different from if not worse than, the description
found in the search warrants in "Burgos, et al. v. the Chief of Staff"which this Court declared null and
void for being too general. 7
In the case at bar, the search warrant issued by respondent judge allowed the seizure of printed
copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies
subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing and
tape recording machines. Thus, the language used is so all embracing as to include all conceivable
records and equipment of petitioner regardless of whether they are legal or illegal. The search
warrant under consideration was in the nature of a general warrant which is constitutionally
objectionable. 8
The lack of particularization is also evident in the examination of the witness presented by the applicant for Search
Warrant.
Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col. Virgilio
Saldajeno and the Court would like to know if you affirm the truth of your answer in this
deposition?
(The deposition instead)
A Yes, sir,
Q How long did it take you for the surveillance?
A Almost a month, sir.
Q Are you a lawyer, Mr. Lapus?
A No, Your Honor, but I was a student of law.
Q So, you are more or less familiar with the requisites of the application for search
warrant?
A Yes, Your Honor.
Q How did you come to know of the person of Mila Aguilar-Roque?
A Because of our day and night surveillance, Your Honor, there were so many suspicious
persons with documents.
Q What kind of documents do you refer to?
A Documents related to the Communist Party of Philippines and New People's Army.

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A Documents related to the Communist Party of Philippines and New People's Army.
Q What else?
A Conferences of the top ranking officials from the National Democratic Front,
Organization of the Communist Party of the Philippines ...
Q And may include what else?
A Other papers and documents like Minutes of the Party Meetings, Plans of these
groups, Programs, List of possible supporters, subversive books and instructions,
manuals not otherwise available to the public and support money from foreign and local
sources. 9
The foregoing questions propounded by respondent Executive Judge to the applicant's witness are not sufficiently
searching to establish probable cause. The "probable cause" required to justify the issuance of a search warrant
comprehends such facts and circumstances as will induce a cautious man to rely upon them and act in pursuant
thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th pertain to Identity. The 3rd and 5th are leading not searching
questions. The 6th, 7th and 8th refer to the description of the personalities to be seized, which is Identical to that in the
Search Warrant and suffers from the same lack of particularity. The examination conducted was general in nature and merely
repetitious of the deposition of said witness. Mere generalization will not suffice and does not satisfy the requirements of
probable cause upon which a warrant may issue. 11

Respondents claim, however, that the proper forum for questioning the illegality of a Search Warrant is with the
Court that issued it instead of this original, independent action to quash. The records show, however, that
petitioners did raise that issue in the SEARCH WARRANT CASE in their Comment, dated October 18, 1984. In
fact, they already questioned the admissibility of the evidence obtained under the Search Warrant, even during
the inquest investigation on August 10, 1984. And in the SUBVERSIVE DOCUMENTS CASE, they filed a Motion to
Suppress on December 12, 1984 claiming that the proceedings under the Search Warrant were unlawful.
Substantially, therefore, while not denominated as a motion to quash, petitioners had questioned the legality of the
Search Warrant.
Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of the SUBVERSIVE
DOCUMENTS CASE before two different Courts is not conducive to an orderly administration of justice. It should
be advisable that, whenever a Search Warrant has been issued by one Court, or Branch, and a criminal
prosecution is initiated in another Court, or Branch, as a result of the service of the Search Warrant, the SEARCH
WARRANT CASE should be consolidated with the criminal case for orderly procedure. The later criminal case is
more substantial than the Search Warrant proceeding, and the Presiding Judge in the criminal case should have
the right to act on petitions to exclude evidence unlawfully obtained.
Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articles seized under an
invalid search warrant should be returned, they cannot be ordered returned in the case at bar to AGUILARROQUE. Some searches may be made without a warrant. Thus, Section 12, Rule 126, Rules of Court, explicitly
provides:
Section 12. Search without warrant of person arrested.A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense.
The provision is declaratory in the sense that it is confined to the search, without a search warrant, of a person
who had been arrested. It is also a general rule that, as an incident of an arrest, the place or premises where the
arrest was made can also be search without a search warrant. In this latter case, "the extent and reasonableness
of the search must be decided on its own facts and circumstances, and it has been stated that, in the application
of general rules, there is some confusion in the decisions as to what constitutes the extent of the place or
premises which may be searched. 12 "What must be considered is the balancing of the individual's right to privacy and the
public's interest in the prevention of crime and the apprehension of criminals." 13

Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against public order; that
the warrant for her arrest has not been served for a considerable period of time; that she was arrested within the
general vicinity of her dwelling; and that the search of her dwelling was made within a half hour of her arrest, we
are of the opinion that in her respect, the search at No. 239-B Mayon Street, Quezon City, did not need a search
warrant; this, for possible effective results in the interest of public order.
Such being the case, the personalities seized may be retained. by CSG, for possible introduction as evidence in
the Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance and to ask Special Military
Commission No.1 to return to her any and all irrelevant documents and articles.
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Commission No.1 to return to her any and all irrelevant documents and articles.
WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge Ernani
Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondent from
introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents case hereby made
permanent, the, personalities seized may be retained by the Constabulary Security Group for possible introduction
as evidence in Criminal Case No. SMC-1-1, pending before Special Military commission No. 1, without prejudice to
petitioner Mila Aguilar-Roque objecting to their relevance and asking said Commission to return to her any and all
irrelevant documents and articles.
SO ORDERED.
Plana, Escolin Relova, Gutierrez, Jr., De la Fuente, Alampay and Patajo concur.
Makasiar, C.J., concurs in the result.
Aquino, J.; took no part.
Concepcion Jr., J., reserves his vote.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

I concur with the concurring and dissenting opinion of Mr. Justice Vicente Abad Santos. The questioned search
warrant has correctly been declared null and void in the Court's decision as a general warrant issued in gross
violation of the constitutional mandate that "the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be
violated" (Bill of Rights, sec. 3). The Bill of Rights orders the absolute exclusion of all illegally obtained evidence:
"Any evidence obtained in violation of this . . . section shall be inadmissible for any purpose in any proceeding"
(Sec. 4[2]). This constitutional mandate expressly adopting the exclusionary rule has proved by historical
experience to be the only practical means of enforcing the constitutional injunction against unreasonable searches
and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of state and
police officers to disregard such basic rights. What the plain language of the Constitution mandates is beyond the
power of the courts to change or modify.
All the articles thus seized fall under the exclusionary rule totally and unqualifiedly and cannot be used against any
of the three petitioners, as held by the majority in the recent case of Galman vs. Pamaran (G.R. Nos. 71208-09,
August 30, 1985). The Court has held that "in issuing a search warrant the judge must strictly comply with the
requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the
individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the
Constitution. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to
justify it." (Mata vs. Bayona, 128 SCRA 388, 393-394)
The majority pronouncement that "as an incident to (petitioner Mila Aguilar- Roque's) arrest, her dwelling at No.
239-B Mayon Street, Quezon City could have been searched, even without a warrant, for evidence of rebellion" is
patently against the constitutional proscription and settled law and jurisprudence. Mr. Justice Cuevas amply
discusses this in the dissenting portion of his separate opinion. Suffice it to add and stress that the arresting CSG
Group themselves knew that they needed a search warrant and obtained the void warrant in question. The
exception of Rule 126, sec. 12 which allows a warrantless search of a person who is lawfully arrested is absolutely
limited to his person, at the time of and incident to his arrest and to dangerous weapons or anything which may be
used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a place
other than the place of arrest. In this case, petitioner Aguilar-Roque was arrested at 11:30 a.m. on board a public
vehicle on the road (at Mayon and P. Margall Streets). To hold that her dwelling could "later on the same day" be
searched without warrant is to sanction an untenable violation, if not nullification, of the cited basic constitutional
rights against unreasonable searches and seizures.
I vote to grant the petition in toto.
ABAD SANTOS, J., concurring and dissenting:
I concur in the judgment insofar as it annuls and sets aside Search Warrant No. 80-84 issued by Executive Judge
Ernani Cruz Pao for the reasons adduced by Justice Melencio Herrera. In addition I wish to state the judge either
did not fully know the legal and constitutional requirements for the issuance of a search warrant or he allowed
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did not fully know the legal and constitutional requirements for the issuance of a search warrant or he allowed
himself to be used by the military. In either case his action can only be described as deplorable.
I do not agree with the ponencia when it says that personalities seized may be retained by the Constabulary
Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1 pending before Special Military
Commission No. 1. I agree with Justice Cuevas. for the reasons stated by him, that their retention cannot be
justified by the provisions of Sec. 12, Rule 126 of the Rules of Court. But then again I cannot agree with Justice
Cuevas, statement that not all the things seized can be ordered returned to their owners. He refers to "the
subversive materials seized by the government agents." What are subversive materials? Whether a material is
subversive or not is a conclusion of law, not of fact. Who will make the determination? Certainly not the military for
it is not competent to do so aside from the fact that it has its own peculiar views on the matter. thus copies of
Playboy magazines were seized from a labor leader now deceased and medicines were also seized from a
physician who was suspected of being a subversive. I say return everything to the petitioners.
CUEVAS, J., concurring and dissenting
I fully agree with the pronouncement in the majority opinion nullifying Search warrant No. 80-84 issued by the Hon.
Ernani Cruz Pao Executive Judge of the Regional Trial Court of Quezon City which was served at 239B Mayon
St., Quezon City It does not specify with requisite particularity the things, objects or properties that may be seized
hereunder. Being in the nature of a general warrant, it violates the constitutional mandate that the place to be
searched and the persons or things to be seized, 'must be particularly described. (Art. IV, Sec. 3, 1973
Constitution)
I, however, regret being unable to concur with the dictum justifying the said search on the basis of Sec. 12, Rule
126 of the Rules of Court which provides:
SEC. 12. Search without warrant of person arrested.A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense.
The lawful arrest being the sole justification for the validity of the warrantless search under the aforequoted
provision (Sec. 12, Rule 126) the same must be limited to and circumscribed by, the subject, time, and place of
said arrest. As to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and
things that may be seized from him are limited to "dangerous weapons" or "anything which may be used as proof
of the commission of the offense." Hence
An officer making an arrest may take from the person arrested any money or property found upon his
person which was used in the commission of the crime or might furnish the prisoner with the means of
committing violence or escaping or which may be used as evidence in the trial of the cause ... (In Re
Moreno vs. Ago Chi, 12 Phil. 439: People vs. Veloso, 48 Phil. 169)
With respect to the time and place of the warrantless search allowed by law, it must be contemporaneous with the
lawful arrest. Stated otherwise, to be valid, the search must have been conducted at about the time of the arrest or
immediately thereafter and only at the place where the suspect was arrested,
The right without a search warrant contemporaneously to search a person lawfully arrested while
committing a crime and to search the place where the arrest is made in order to find and seize things
connected with the crime as its fruits or as the means by which it was committed, as well as weapons
or other things to effect an escape from custody is not to be doubted. CAROLL vs. US 267 US 122.
158. ... But the right does not extend to other places. Frank Agnello's house was several blocks
distant from Alba's house where the arrest was made. When it was entered and searched, the
conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search
cannot be sustained as an incident of the arrests. MARSON vs. US, 275 US 192, 199. (Emphasis
supplied) (Agnello vs. U.S., 269 U.S. 20,30)
The second element which must exist in order to bring the case within the exception to the general rule is that, in
addition to a lawful arrest, the search must be incident to the arrest.
The search must be made at the place of the arrest, otherwise, it is not incident to the arrest.
AGNELLO vs. U.S. supra. In this latter case, 269 U.S. 20 at 30, it is said that the officers have a right
to make a search contemporaneously with the arrest. And if the purpose of the officers in making
their entry is not to make an arrest, but to make a search to obtain evidence for some future arrest,
then search is not incidental to arrest. BYARS vs. U.S. 273 U.S., 28 ET AL. (Papani vs, U. S. 84 F 2d
160, 163)
In the instant case, petitioners were arrested at the intersection of Mayon St. and P. Margall St. at 11:30 A.M. of
August 6. 1976. The search, on the other hand, was conducted after the arrest, that was at around 12:00 noon of
the same day or "late that same day (as respondents claim in their "COMMENT") at the residence of petitioner
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the same day or "late that same day (as respondents claim in their "COMMENT") at the residence of petitioner
AGUILAR-ROQUE in 239B May
n St., Quezon City. How far or how many kilometers is that place from the place
where petitioner was arrested do not appear shown by the record. But what appears undisputed is that the search
was made in a place other than the place of arrest and, not on the occasion of nor immediately after the arrest. It
cannot be said, therefore, that such a search was incidental to the arrest of the petitioners. Not being an incident
of a lawful arrest, the search of the premises at 239B Mayon St., Quezon City WITHOUT A VALID SEARCH
WARRANT is ILLEGAL and violative of the constitutional rights of the respondent. The things and properties
seized on the occasion of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary rule.
However, not all the things so seized can be ordered returned to their owners. Objects and properties the
possession of which is prohibited by law, cannot be returned to their owners notwithstanding the illegality of their
seizure. (Mata vs. Bayona, 128 SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive
materials seized by the government agents which cannot be legally possessed by anyone under the law can and
must be retained by the government.

Separate Opinions
TEEHANKEE, J., concurring and dissenting.
I concur with the concurring and dissenting opinion of Mr. Justice Vicente Abad Santos. The questioned search
warrant has correctly been declared null and void in the Court's decision as a general warrant issued in gross
violation of the constitutional mandate that "the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be
violated" (Bill of Rights, sec. 3). The Bill of Rights orders the absolute exclusion of all illegally obtained evidence:
"Any evidence obtained in violation of this . . . section shall be inadmissible for any purpose in any proceeding"
(Sec. 4[2]). This constitutional mandate expressly adopting the exclusionary rule has proved by historical
experience to be the only practical means of enforcing the constitutional injunction against unreasonable searches
and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of state and
police officers to disregard such basic rights. What the plain language of the Constitution mandates is beyond the
power of the courts to change or modify.
All the articles thus seized fall under the exclusionary rule totally and unqualifiedly and cannot be used against any
of the three petitioners, as held by the majority in the recent case of Galman vs. Pamaran (G.R. Nos. 71208-09,
August 30, 1985). The Court has held that "in issuing a search warrant the judge must strictly comply with the
requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the
individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the
Constitution. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to
justify it." (Mata vs. Bayona, 128 SCRA 388, 393-394)
The majority pronouncement that "as an incident to (petitioner Mila Aguilar- Roque's) arrest, her dwelling at No.
239-B Mayon Street, Quezon City could have been searched, even without a warrant, for evidence of rebellion" is
patently against the constitutional proscription and settled law and jurisprudence. Mr. Justice Cuevas amply
discusses this in the dissenting portion of his separate opinion. Suffice it to add and stress that the arresting CSG
Group themselves knew that they needed a search warrant and obtained the void warrant in question. The
exception of Rule 126, sec. 12 which allows a warrantless search of a person who is lawfully arrested is absolutely
limited to his person, at the time of and incident to his arrest and to dangerous weapons or anything which may be
used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a place
other than the place of arrest. In this case, petitioner Aguilar-Roque was arrested at 11:30 a.m. on board a public
vehicle on the road (at Mayon and P. Margall Streets). To hold that her dwelling could "later on the same day" be
searched without warrant is to sanction an untenable violation, if not nullification, of the cited basic constitutional
rights against unreasonable searches and seizures.
I vote to grant the petition in toto.
ABAD SANTOS, J., concurring and dissenting:
I concur in the judgment insofar as it annuls and sets aside Search Warrant
No. 80-84 issued by Executive Judge Ernani Cruz Pao for the reasons adduced by Justice Melencio Herrera. In
addition I wish to state the judge either did not fully know the legal and constitutional requirements for the issuance
of a search warrant or he allowed himself to be used by the military. In either case his action can only be described
as deplorable.
I do not agree with the ponencia when it says that personalities seized may be retained by the Constabulary
Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1 pending before Special Military
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Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1 pending before Special Military
Commission No. 1. I agree with Justice Cuevas. for the reasons stated by him, that their retention cannot be
justified by the provisions of Sec. 12, Rule 126 of the Rules of Court. But then again I cannot agree with Justice
Cuevas, statement that not all the things seized can be ordered returned to their owners. He refers to "the
subversive materials seized by the government agents." What are subversive materials? Whether a material is
subversive or not is a conclusion of law, not of fact. Who will make the determination? Certainly not the military for
it is not competent to do so aside from the fact that it has its own peculiar views on the matter. thus copies of
Playboy magazines were seized from a labor leader now deceased and medicines were also seized from a
physician who was suspected of being a subversive. I say return everything to the petitioners.
CUEVAS, J., concurring and dissenting:
I fully agree with the pronouncement in the majority opinion nullifying Search warrant No. 80-84 issued by the Hon.
Ernani Cruz Pao Executive Judge of the Regional Trial Court of Quezon City which was served at 239B Mayon
St., Quezon City It does not specify with requisite particularity the things, objects or properties that may be seized
hereunder. Being in the nature of a general warrant, it violates the constitutional mandate that the place to be
searched and the persons or things to be seized, 'must be particularly described. (Art. IV, Sec. 3, 1973
Constitution)
I, however, regret being unable to concur with the dictum justifying the said search on the basis of Sec. 12, Rule
126 of the Rules of Court which provides:
SEC. 12. Search without warrant of person arrested.A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense.
The lawful arrest being the sole justification for the validity of the warrantless search under the aforequoted
provision (Sec. 12, Rule 126) the same must be limited to and circumscribed by, the subject, time, and place of
said arrest. As to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and
things that may be seized from him are limited to "dangerous weapons" or "anything which may be used as proof
of the commission of the offense." Hence
An officer making an arrest may take from the person arrested any money or property found upon his
person which was used in the commission of the crime or might furnish the prisoner with the means of
committing violence or escaping or which may be used as evidence in the trial of the cause ... (In Re
Moreno vs. Ago Chi, 12 Phil. 439: People vs. Veloso, 48 Phil. 169)
With respect to the time and place of the warrantless search allowed by law, it must be contemporaneous with the
lawful arrest. Stated otherwise, to be valid, the search must have been conducted at about the time of the arrest or
immediately thereafter and only at the place where the suspect was arrested,
The right without a search warrant contemporaneously to search a person lawfully arrested while
committing a crime and to search the place where the arrest is made in order to find and seize things
connected with the crime as its fruits or as the means by which it was committed, as well as weapons
or other things to effect an escape from custody is not to be doubted. CAROLL vs. US 267 US 122.
158. ... But the right does not extend to other places. Frank Agnello's house was several blocks
distant from Alba's house where the arrest was made. When it was entered and searched, the
conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search
cannot be sustained as an incident of the arrests. MARSON vs. US, 275 US 192, 199. (Emphasis
supplied) (Agnello vs. U.S., 269 U.S. 20,30)
The second element which must exist in order to bring the case within the exception to the general rule is that, in
addition to a lawful arrest, the search must be incident to the arrest.
The search must be made at the place of the arrest, otherwise, it is not incident to the arrest.
AGNELLO vs. U.S. supra. In this latter case, 269 U.S. 20 at 30, it is said that the officers have a right
to make a search contemporaneously with the arrest. And if the purpose of the officers in making
their entry is not to make an arrest, but to make a search to obtain evidence for some future arrest,
then search is not incidental to arrest. BYARS vs. U.S. 273 U.S., 28 ET AL. (Papani vs, U. S. 84 F 2d
160, 163)
In the instant case, petitioners were arrested at the intersection of Mayon St. and P. Margall St. at 11:30 A.M. of
August 6. 1976. The search, on the other hand, was conducted after the arrest, that was at around 12:00 noon of
the same day or "late that same day (as respondents claim in their "COMMENT") at the residence of petitioner
AGUILAR-ROQUE in 239B Mayon St., Quezon City. How far or how many kilometers is that place from the place
where petitioner was arrested do not appear shown by the record. But what appears undisputed is that the search
was made in a place other than the place of arrest and, not on the occasion of nor immediately after the arrest. It
cannot be said, therefore, that such a search was incidental to the arrest of the petitioners. Not being an incident
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cannot be said, therefore, that such a search was incidental to the arrest of the petitioners. Not being an incident
of a lawful arrest, the search of the premises at 239B Mayon St., Quezon City WITHOUT A VALID SEARCH
WARRANT is ILLEGAL and violative of the constitutional rights of the respondent. The things and properties
seized on the occasion of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary rule.
However, not all the things so seized can be ordered returned to their owners. Objects and properties the
possession of which is prohibited by law, cannot be returned to their owners notwithstanding the illegality of their
seizure. (Mata vs. Bayona, 128 SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive
materials seized by the government agents which cannot be legally possessed by anyone under the law can and
must be retained by the government.
Footnotes
1 Rollo, pp. 24 & 145.
2 Inventory List dated August 6, 1984, Annex "D-1", Petition, p. 41, Rollo.
3 Amended Inventory List, dated August 31, 1984, Annex Ibid., p. 46, Rollo.
4 Annex "D", Petition.
5 Annex "F", Petition, p. 44, Rollo.
6 Burgos, Sr. vs. Chief of Staff, AFP, 133 SCRA 800, 814 & 815 (1984).
7 Fr. Jose Dizon vs. Hon. Jose P. Castro, Resolution of April 1 1, 1985 in G.R. No. 67923, p. 4.
8 Rommel Corro vs. Hon. Esteban Lising, G.R. No. 69899, July 15, 1985, p. 8.
9 Rollo, pp. 144 & 145.
10 U.S. vs. Addison, 28 Phil. 566, 570 (1914); People vs. Sy Juco, 64 Phil. 667 (1937).
11 Burgos, Sr. vs. Chief of Staff, AFP, 133 SCRA 800 (1984).
12 79 C.J.S., p. 843.
13 68 Am Jur 2d, p. -1 46.
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